Why Should Contracts Always Be Professionally Drafted? Read This!

Published Tuesday 9th October 2018, 05:00 AM

The trouble with contracts that have not been professionally drafted is that what may appear trivial inaccuracies or ambiguities can later come back to bite you. In a case on point, a civil engineering agreement left the role – and even the identity – of one of the contracting parties open to debate.

The case concerned a housing development that hit a major snag due to a defective retaining wall. A great deal of further work, including extensive piling, was needed to address the problem. The main site contractor blamed a civil engineer whom it had engaged orally and by a succession of emails, rather than by a formal contract.

After the contractor launched a damages claim, the absence of a formal agreement led to issues arising as to the scope of the services that the engineer had agreed to perform. There was also a dispute as to whether the engagement was with him personally, or with a company that he controlled.

In finding that the engineer himself was the contracting party, the High Court noted that his professional letterhead made no mention of the company. Payments that he received were channelled through the company, but an objective analysis of email exchanges and other documents showed that he had undertaken the work in his private capacity.

In dismissing the contractor’s claim, however, the Court found that the engineer had not been expressly or impliedly engaged to design or re-design the retaining wall. He had also not warranted that, after his works, the wall would be fit for purpose. His engagement was confined to the design of a new drain and he had performed that task with all due care and skill.